James Dickinson, solicitor in the sports sector team at Harrison Drury, looks at how a dispute between Sunderland AFC and two of its players raises the issue of dealing with a breach of contract.
It’s rare in football to find cases where football players could be deemed to have breached their contract in a way that ultimately results in players being ‘sacked’ from their club.
However, the recent cases involving Sunderland AFC players Didier Ndong and Papy Djilobodji highlight what options a football club may have when a player does breach their contract.
Behind the case
Sunderland signed the two players while they were playing in the Premier League in the 2015-16 season. In fact, Ndong was (and remains) Sunderland’s record signing at a fee of around £13.6m.
In the same season, Sunderland were relegated to the English Championship. For the 2016-17 season both players spent considerable time on loan at other clubs. Again, at the end of the season Sunderland were relegated and now play in English Football’s third tier, known as League One.
In the intervening period between the close of the 2016-17 season and the opening of the 2017-18 season, neither player returned to Sunderland for pre-season training.
It was reported that Djilobodji returned to the club in the first week of September (after the season had begun) and Ndong has yet to return.
Serving a notice to the players
On 12 September 2018, Sunderland announced that they had sacked Djilobodji for breaching his contract and failing a fitness test.
It had been agreed in writing between Sunderland and Djilobodji that he would be entitled to spend July on unpaid leave to seek a new club, failing which he would return to Sunderland in a position to play professional football. Djilobodji in fact returned a month late, having ignored written requests to return. Upon his return to Sunderland, Djilobodji was subject to a comprehensive fitness test as required of any normal professional player, and subsequently failed.
Sunderland therefore deemed this to be a repudiatory breach of contract by Djilobodji. Sunderland subsequently served notice upon Djilobodji confirming this.
Similarly, Ndong failed to report for pre-season training (but had no written agreement to miss any time) and has to date failed to return to the club. Ndong has been served with notice by Sunderland that they are accepting his repudiatory breach of contract by failing to attend training, which essentially terminates the player’s employment with the club.
Neither player has responded publicly to the acceptance of their repudiatory breach.
What is a repudiatory breach?
A repudiatory breach arises where one party to a contract believes that by the actions of the other party they intend to breach the contract between them. A repudiation of a contract may entitle the injured party to treat the contract as discharged and sue for damages for the losses sustained. In this above case this, the loss may be the loss of the value of being able to sell the players to other clubs.
Do the players have a case for wrongful dismissal?
It is a difficult question to answer without seeing the specifics of each players’ contract. However, generally speaking, staff are expected to return to their workplace after an agreed holiday period. If an employee in an office environment failed to return to work after a holiday, their employer may legitimately think that they never intend to return. Similarly, if a worker returns to work “unfit” to work, whatever guise that may be in, this may potentially have serious consequences for their future career in their workplace.
Simply because in this instance, the two employees are footballers, it does not necessarily follow that they should be subject to any special treatment as ‘employees’ of Sunderland AFC.
Harrison Drury’s sports law team can assist sports clubs, players and regulatory bodies with dispute resolution matters. For more information please contact James on 01772 258321.